Right to Equality / Gender Equality
COURT : Supreme Court of Nepal
CASE : Civil Case
This case is related on Gender Equality in employment. The subject of this case is Certiorari. The petitioner of this case is Reena Bajracharya and Others and the respondent of this case is Royal Nepal Airlines Corporation (RNAC).The fact of this case is Gender Discrimination in Retirement.
The petitioners were female cabin crew Air-hostesses, employed by the Royal Nepal Airlines Corporation (RNAC). RNAC’s Service Regulations Rule 16.1.1 provides that crew personnel would retire at the age of 55 and non-crew personnel at the age of 60. Rule 16.1.3 provides that Air-hostesses would retire either once she has passed the age of 30 or once she has served over 10 years. The second amendment of the regulations adds a provision that the airline would allow serving additional three years after the age of 55, subject to a health examination. Rule 4.1.3 provides that air hostesses and aircraft hosts are of same service group. However, craft hosts are allowed to work for three additional years, which presents an inequality between male and female.
The RNAC Service Regulations violate Articles 11(1) and 2, 12(2)(e), 17 of the Constitution of the Kingdom. Article 15 of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that women and men should be treated equally. Nepal is a party to the Convention, thus, according to Article 9 of the Treaty Act, the Convention is equivalent to Nepal law. RNAC Service Regulations also contravene the Convention.
In other countries craft-hosts and air hostesses are treated equally with regards to their age. Article 11 of the Constitution completely prohibits gender discrimination. Article 131 of the Constitution provides that laws inconsistent with the Constitution would cease to operate one year after its commencement. However, the regulations remain operative, and their second amendment promotes discriminations.
Therefore, the petitioners demanded to annul the discriminatory Rule 16.1.3 of the said Regulations by the writ of Certiorari, and to issue directives of Mandamus to the respondent to treat male and female personnel equally. The petitioners also requested an interim order according to which female personnel would not be required to retire until a final decision in the case had been reached.
The respondent institutions stated that Rule 16.1.3 had been made in consideration of the nature of the job to be performed by female personnel, which had never been questioned since 2031 BS. Articles 11(3), 26(7) do not provide absolute rights to women, they only provide for scope to offer special types of amenities and conditions. The said Rule was formulated according to the considerations on the physical condition of women and the nature of the job.
The Rule had not restricted the freedom of profession. Rule 16.1.3 provided that air hostesses might be employed for jobs on the ground after their retirement. The petitioners had committed to the terms and conditions upon entering employment. They are bound to respect the conditions under the general principle of contract law. The petitioners are working past the age of 30 despite the proviso under Rule 16.1.3 and are treated equally among other personnel.
Air service is special and sensitive in nature. This gives more importance to other issues than the protection of rights. For that reason it had been considered that only women up to the age of 30 would be competent for the service and it had been managed accordingly in the Regulations. There was no discrimination for remuneration. Therefore SC was requested to nullify the petition.
According to the Regulations of the Corporation, personnel means Pilot, Co-pilot, Flight Engineer, Radio Officer, Flight Navigator, Air-hostess, Cabin Assistant, and Purser appointed in the service of the Corporation in any grade. It deemed that other provisions including working hours and leave facilities, except the one in question, are equal to all. The issue of gender equality raised by the petitioners seemed relevant to be analyzed considering the developments and provision of human rights. The issue of gender equality has been raised from time to time in the democratization process of Nepal and after the commencement of the Constitution 1990.
There is a proclamation in the Constitution ensuring fundamental human rights and Nepal has signed a number of Conventions including the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Section 9 of the Treaty Act 2047 focuses on prompt implementation, keeping them in a higher grade than Nepal laws. Nepal’s acceptance of the international spirit of CEDAW has been justified by the spirit of proviso and Article 11(3) of the Constitution. The importance of gender equality is inseparable from the development of national human rights, so there should be no point in law and activities which may hint at gender discrimination.
With this understanding it has been necessary for the Court to see whether the provision in Rule 16.1.3 of the Regulations is consistent with the above mentioned Articles 11(5), 11(2), 11(3) and 11(5) of the Constitution which has internalized the spirit of Article 15 of the 1979 Convention. Article 11(1) provides for equality before law; Article 11(2) stipulates protection against discrimination on the ground of religion, gender etc. in the application of the law; 11(3) stipulates that the State would not discriminate against anyone on the ground of gender, colour etc.; and 11(5) guarantees equal remuneration for equal work. According to these fundamental points, it is evident that security and amenities in service shall be equal.
The proviso of Article 11(3) is not restrictive but is of a positive nature for legislating for progress and the protection of women. It is not a provision for compromising the equal treatment of women. Additionally, Rule 16.1.3 directly contravenes Article 26(7) which directs the State to encourage the participation of women in the national development.
Therefore, it can be said that the Rule provides for conditions by which the petitioners would be deprived of equal opportunities in serving. A law giving room for discretion could not establish the right to equality. Estoppel may not be applied to legal rights and the principle of delay may not be applied to a constitutional question. Therefore, Rule 16.1.3 of the above mentioned regulation is against equality, inconsistent with the constitutional provision and is to be declared void through the issuance of a writ.